Disparate Impact/Treatment

There are two basic ways to show discrimination under Title VII: disparate treatment and disparate impact. Under either version, a trial proceeds in a three-step process.

First, the plaintiff must establish a prima facie case of discrimination in one of two ways, as discussed below.

Second, the burden shifts to the employer to prove a legitimate, non-discriminatory reason for its actions.

Third, the plaintiff has the opportunity to prove that the employer's stated reason is merely a pretext for discrimination.

What does prima facie case mean and what do I have to prove?

Prima facie is Latin for "on its first appearance," and as a legal term it means a showing sufficient to establish your version of the story, although it may still be possible for your employer to disprove your version, as discussed below In other words, by establishing a prima facie case, you have shown the appearance of discrimination. If your employer cannot come up with a competing and better explanation of what happened, you've won your case.

There are two ways to make out a prima facie case that discrimination has occurred under Title VII: by showing disparate treatment, or by showing disparate impact.

The exact nature of the prima facie case varies according to what type of discrimination you are claiming, as discussed in the section on this Web site on forms of discrimination (see sections on hiring, firing, promotion, pregnancy, etc).

What does disparate treatment mean?

Disparate treatment means you were deliberately treated differently because you are a woman. The treatment must be intentional on the part of your employer. Therefore, you have to show either intent, or enough facts for the court to infer your employer's intent.

The courts sometimes refer to discriminatory intent in the context of disparate treatment as discriminatory "animus" in the sense that the underlying motivation for the employer's conduct was unlawful discrimination against women.

What does disparate impact mean?

Disparate impact occurs when a policy does not explicitly apply only to men or only to women, but in practice has a significantly different and negative impact on women.

For example, one early case had to do with pregnancy benefits. Denying seniority to employees returning from pregnancy leave in theory applied to all employees. But in practice, since only women get pregnant, women were affected and men were not. The policy may be subtler, such as setting height and weight requirements that are not actually necessary to perform a job. Disparate impact cases usually rely on statistical evidence to show that a policy disproportionately harms members of a protected class. To make a prima facie showing of disparate impact, a plaintiff does not need to show an employer's motive -- but only the outcome in practice.

What is a business necessity or a legitimate business purpose?

Once a plaintiff has proven a prima facie case of discrimination, the burden shifts to the employer to show a legitimate, non-discriminatory reason for acting as it has. For example, if an employer mandates that all employees be of a minimum height and weight, it must then show that height and weight are necessary to efficient job performance.

What does "pretext" mean in this context, and how do I prove it?

Once an employer has given a non-discriminatory reason for its actions, the burden shifts back to the employee to show that the stated reason is not the real reason, but is a mere pretext for discrimination. Pretext means that the explanation given by your employer is just an excuse and not the real reason for your employer's conduct.

One way to show pretext is to demonstrate that the employer had another option that would have addressed its legitimate business concerns in a manner that would not be discriminatory.

EXAMPLE. In the 1982 case Zuniga v. Kleberg County Hosp., Kingsville, Tex, a hospital told its first female X-ray technician that she would have to leave her job if she became pregnant, she was ineligible for a leave of absence, and they would not guarantee her job after her child was born. They claimed to fear that exposure to X-rays during pregnancy could bring harm to the fetus and lawsuits to the hospital. The X-ray technician demonstrated concern for the fetus was a pretext by showing the hospital could have offered a leave of absence, thus protecting the fetus, but chose instead to insist on termination, with all its discriminatory effect.

Another way to show pretext is to demonstrate that the employer's claimed reason applied just to a woman or women, and not in parallel situations involving men. For example, in a 1983 case, an employer claimed an employee was unqualified for a promotion and instead promoted a man. The promoted man had equivalent education, but had worked in a relevant field for a shorter time. The employer's willingness to promote an "unqualified" man but not an "unqualified" woman demonstrated that the qualifications were not the real reason for denying the woman the promotion.